957 F.3d 122
2d Cir.2020Background
- In May 2014, while incarcerated at Cattaraugus County Jail, Giovanni Cotto arranged for fellow inmate Charles Hecht to assault Anthony Maldonado after Maldonado testified for the prosecution in a federal criminal trial (the Martinez trial).
- Maldonado’s injuries (jaw wired shut) delayed his testimony and, per prosecutors, materially diminished his capacity to testify when he returned, affecting the Martinez trial’s presentation.
- A grand jury indicted Cotto under 18 U.S.C. § 1513(b)(1) (retaliating against a witness); Hecht pled guilty and testified for the Government; Cotto was convicted by a jury in July 2017.
- At sentencing the district court applied a three-level enhancement under U.S.S.G. § 2J1.2(b)(2) for substantial interference with the administration of justice and imposed 115 months’ imprisonment plus four years supervised release.
- On appeal Cotto challenged: (1) whether § 1513(b)(1) requires proof that he knew the proceeding was federal; (2) the district court’s curtailing of cross-examination (limiting a fifth taped call) and denial of a Rule 33 new trial; (3) the § 2J1.2(b)(2) sentencing enhancement; and (4) supervised-release conditions that he argued impermissibly delegated judicial authority to probation (substance-abuse treatment condition and a risk-notification provision).
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Cotto) | Held |
|---|---|---|---|
| Whether § 1513(b)(1) requires proof that defendant knew the proceeding was a federal ("judge or court of the United States") proceeding | Knowledge of federal character not required; federal limitation is jurisdictional and need not be in defendant’s mind | § 1513(b)(1) requires proof defendant knew the proceeding was federal; insufficiency of evidence to prove such knowledge | Affirmed: knowledge of federal nature is not required; limitation is jurisdictional, not part of mens rea |
| Whether appellate court should grant new trial for limiting cross-examination (playing only four taped calls) | Limitation was within district court’s discretion; additional tapes would be cumulative | Truncation deprived Cotto of his best opportunity to impeach Hecht; warrants new trial | Affirmed denial of new trial; exclusion of cumulative evidence was proper exercise of discretion |
| Whether sentencing enhancement under U.S.S.G. § 2J1.2(b)(2) (substantial interference with administration of justice) was proper | Beating delayed testimony and materially diminished witness’s capacity; qualifies as substantial interference | Enhancement not warranted because conduct doesn’t fit enumerated examples | Affirmed enhancement; assault causing delay and diminished testimony qualified as substantial interference |
| Whether supervised-release conditions impermissibly delegate judicial authority (substance-abuse treatment and risk-notification) | District court’s language risked improper delegation but Government consents to limited remand to fix substance-abuse clause; district court should consider Traficante ruling on risk-notification | Conditions unlawfully delegate to Probation Office authority to require/terminate treatment and notify third parties | Remanded: (1) limited remand to revise substance-abuse condition per district practice (consented); (2) district court to consider forthcoming Traficante decision regarding risk-notification; parties may reinstate appeal after remand |
Key Cases Cited
- Torres v. Lynch, 136 S. Ct. 1619 (distinguishing jurisdictional elements from substantive elements for mens rea)
- Rehaif v. United States, 139 S. Ct. 2191 (presumption that mens rea applies to elements that criminalize otherwise innocent conduct)
- Feola v. United States, 420 U.S. 671 (jurisdictional facts need not be in defendant’s mind)
- Yermian v. United States, 468 U.S. 63 (jurisdictional language in §1001 does not require knowledge that matter concerned federal agency)
- United States v. Epskamp, 832 F.3d 154 (2d Cir.) (knowledge of jurisdictional fact generally not required)
- United States v. Ardito, 782 F.2d 358 (2d Cir.) (no requirement that defendant know trial was federal for obstruction)
- United States v. Amer, 110 F.3d 873 (2d Cir.) (§2J1.2 enhancement may apply to other similarly disruptive acts)
- United States v. Flaharty, 295 F.3d 182 (2d Cir.) (trial court has wide discretion to limit cumulative cross-examination)